Boy can tell High Court sex law is unfair

A BOY convicted of having unlawful sex with a consenting girl when they were both aged 15 has won permission to launch a landmark High Court bid for a ruling that the law discriminates against males under 16.

A BOY convicted of having unlawful sex with a consenting girl when they were both aged 15 has won permission to launch a landmark High Court bid for a ruling that the law discriminates against males under 16.

The teenager E, from the Llandudno area, who cannot be named for legal reasons, will ask the court to declare the 1956 Sexual Offences Act "incompatible" with the European Convention on Human Rights.

His counsel, Gareth Roberts, argued at the High Court in London yesterday that it was unfair and discriminatory that when a boy and a girl under 16 decided to have consensual sex "one becomes a victim and the other a criminal".

Lord Justice Maurice Kay, sitting with Mr Justice Moses, ruled the challenge should go to a full hearing, saying, "I take the view there is at least an arguable possibility of incompatibility between the Sexual Offences Act and Articles 14 and 8 of the Convention."

Article 14 prohibits discrimination while Article 8 protects the right to privacy.

But the judge warned that the courts could only make a declaration of incompatibility, which meant it would then be for Parliament to decide whether to change the law in order to comply with the Convention.

The courts would not be able to quash E's conviction, imposed by Llandudno magistrates in August last year.

His best hope was to apply for a pardon, if his legal challenge is successful and leads to a change in the law.

Lord Justice Kay said there was no doubt that E, as a 15-year-old, had unlawful sexual intercourse with a 15-year-old girl.

Papers before the judge revealed the act took place on December 6, 2002 in Conway, and the following day E was interviewed concerning an allegation of rape. But the girl said "it wasn't rape".

A trial date was set before Llandudno Youth Court, but adjourned after the human rights issue was first raised. E was eventually convicted unlawful sexual intercourse on August 19, 2003.

Lord Justice Kay said it was now argued that E's prosecution and finding of guilt were discriminatory and breached his human rights because the law "criminalises a boy under 16 and not the girl in relation to an act of consensual sexual intercourse".

At the magistrates court, E had made formal admissions even though he pleaded not guilty. A finding of guilt was made and a 12-month supervision order imposed.

The judge said the magistrates had refused to state a case for the High Court to consider the human rights issue, and so E's lawyers had applied for an order forcing them to do so.

Granting the order, the judge said, "In doing so, I am concerned that the practical consequences for E, even if he is successful in obtaining a declaration of incompatibility, may be extremely limited.

"This court is not free to depart from self-evident English law in the event of incompatibility, if incompatibility is established.

"The most that can happen was that the declaration would be made and Parliament might change the law.

"However, that would not rid E of his conviction. On the other hand it would establish that this particular conviction for unlawful sexual intercourse is one against which there is at least a large European question mark, if that is in fact established.

"Accordingly, I would grant permission so that this important point may properly be considered, once the magistrates have stated a case."

Mr Justice Moses said he agreed. He also suggested the best E could hope for was a pardon if he helped to change the law.